States of Exception: Human Rights, Biopolitics, Utopia By Costas Douzinas, Cheltenham: Edward Elgar, 2023, 272 pp., £90.00

Abstract

It has been an interesting feature of the response to the COVID pandemic that human rights scholars have produced comparatively little in the way of rigorous intellectual engagement with the various policies adopted around the world to stop or contain viral spread during the 2020–2021 period. It is as though events were of such an unprecedented, and at times even surreal, nature that scholars did not know quite what to make of them. Were lockdowns, vaccine passports, and the other restrictions on liberty given effect during that period consonant with human rights law – whether in spirit or in doctrine – or not? The result was a discombobulation that was itself highly revealing, in that it exposed a very old problem that sits at the bedrock of human rights law itself: the lack of clear conceptual grounds for the existence of human rights in the first place.

In this respect, Costas Douzinas’ States of Exception: Human Rights, Biopolitics, Utopia makes for emblematic, if frustrating, reading. It is one of the few book-length treatments of the post-pandemic state of human rights by a prominent theorist that actually seeks to engage with the events of that period in a sustained way. However, the result is confusion and, at times, a frankly indefensible lack of clarity and even (one uses this word with great caution in an academic book review) sloppiness.1 This in turn holds up for critical reflection, and exposes to interrogation, the old cliché that there seems to be rough agreement that human rights should exist, ‘on condition no one asks us why’.2 We do not have a clear idea about what human rights are really for, and as a consequence, at a moment of crisis, we flounder. The value of States of Exception is chiefly in revealing this basic problem – though, as we shall see, it raises some other important questions along the way.

The book defies easy summary; its author indeed more or less confesses to its disorganized quality in his introduction, attributing it to ‘media pressure’ and the ‘special conditions’ of the pandemic (p. 13). It is a peculiarly broken-backed text. In the first half, we find ourselves given tantalizing glimpses of a Foucauldian reading of the pandemic response, tying it together with the immigration and economic crises of the 2010s, which never fully materializes; in the second half, we discover ourselves in a sweeping series of ‘critical reflections on human rights’ that lacks a common thread. But I take a passage appearing towards the book's end (p. 235) to encapsulate its message in microcosm. In the course of a single paragraph, Douzinas tells us: ‘We can conclude that the demand for rights expresses certain types of individual need, lack or injury, and, at the same time, the intimacy of other-dependent subjectivity.’ However, he continues, ‘[t]he law cannot meet this demand’. The result is that ‘[w]e must criticise rights for their limitations, exclusions and sidelining of social justice’. At the same time, though, ‘no one should be without rights’, because ‘human rights “inscribe in law and remind law of its necessary and impossible commitemnt [sic] to an unconditional justice”’.3 Yet, he immediately goes on,

Douzinas would have it that this gives human rights two basic meanings. On the one hand, they are imbued with a ‘principle of hope’ (p. 250). On the other, they serve as a kind of freestanding source of critique; by presenting an image of utopia, they can ‘stand in judgement of the present law’ and remind it of its inescapable interest in justice (p. 250).5 However, looked at another way, this is a blueprint for what one would be otherwise compelled to call ‘cakeism’: a sense that human rights can be called on to ‘stand in judgement’ on dissatisfactory circumstances without ever having to be applied in a rigorous way to provide stability of expectations or answers to the exigencies of fortune or even, for that matter, justice in individual cases.

The result is an almost total failure to acknowledge that human choice making ineluctably requires trade-offs to be made, and that law – as a set of rules that embody social norms – might be in a position to help to resolve those trade-offs. This is made manifest throughout States of Exception, though there are three main subjects in respect of which it appears most prominently: COVID itself, immigration and asylum, and the right to protest.

The pandemic occupies the first main portion of the book, and is where the failure to acknowledge trade-offs is perhaps at its most obvious and damaging, and where it leads to the most serious contradictions. For reasons of space, all of these cannot be listed here, but I focus on the most illustrative, which is the issue of saving or preserving life versus the needs of the economy and of social life more broadly. This trade-off is of course obvious to anybody who lived through the COVID era.

Here, on the one hand, Douzinas begins by putting himself firmly on the side of mainstream opinion during the 2020–2021 period, by castigating the tendency for the United Kingdom (UK) government to show reluctance in imposing lockdowns and other measures. The initial policy of ‘herd immunity’ adopted in the first months of 2020 is described as treating people like ‘farm animals’ and a ‘blood sacrifice’ (pp. 58–59); the delayed implementation of the second lockdown in November 2020, he tells us, ‘caused the avoidable deaths of large numbers’ (p. 59). Furthermore, he presents cost–benefit analysis in respect of lockdowns in dystopian terms: the government's ‘perverse’ response placed the ‘operation of the market’ above public health (p. 59); it meant ‘expos[ing] vulnerable people to disease and possible death to promote the wider good’ (p. 60); and it was based on the notion that ‘some people do not deserve state protection’ (p. 60) and on the ‘establishment of hierarchies in the value of lives’ (p. 63). He concludes by calling it ‘Social Darwinism’ (p. 63).

Yet, on the other hand, Douzinas also seeks to present himself as being against the ‘zero-COVID’ policy that was pursued, for example, in China, and also against the very rapid and harsh way in which the lockdown measures were introduced in the UK (which he appears otherwise to have welcomed). Hence, shortly after the passage cited above, we find him criticizing the fact that policies were ‘introduced without public consultation or full parliamentary debate’ (p. 71) and complaining about the way in which ‘civil and democratic freedoms’ were forced into retreat during the period (p. 70). A few pages later, he lauds the ‘successful case of resistance’ (p. 73) that took place across China in 2022 against the ‘extreme case of biopolitical control’ that found expression in its ‘zero-COVID’ policy (p. 74), whereby the ‘Chinese authorities pursued the single priority of managing life’ (p. 74). The result is a flat self-contradiction, wherein the ‘draconian’ Chinese response that monomaniacally focused on protecting life is held up for negative comparison with the very ‘Western biopolitics’ that ‘balance[d] the protection of health with the health of the economy’ (p. 74) and was earlier traduced in such extreme terms. Later, Douzinas even approvingly cites Foucault's prediction that ‘“breaking all the bonds of obedience, the population will really have the right, not in juridical terms, but in terms of essential and fundamental rights, to break any bonds of obedience it has with the state”’ (p. 77).6 It goes without saying that this, had it been realized in 2020, would have self-evidently undermined precisely the absolute prioritization of the protection of life of which Douzinas describes himself as being in favour, since it would have precluded the imposition of any coercive measures in response to the pandemic whatsoever. One is left with the distinct impression that there is on display here a deep failure to address the basic dilemma of freedom against security, and that this is itself symptomatic of the absence of any coherent theory of the relationship between human rights and the state.

A similar failing – though, in the interests of space, I will deal with it more briefly – is found in the book's treatment of the matter of immigration and asylum. Here, the trade-off that we encounter is that between the cosmopolitan desire to extend to the population of the world the right not only to seek asylum but also to migrate for economic reasons, and the left critique of neoliberalism, which Douzinas explicitly identifies with cosmopolitanism towards the end of the book (p. 198) and which is of course reliant on, and functions to a large extent through, the free movement of labour as one of its most fundamental predicates. Hence, we find a similar confused and self-contradictory dynamic emerging, in which the ‘intolerance and inhumanity’ (p. 106) and ‘xenophobia’ (p. 111) of immigration restrictions are criticized in apocalyptic terms, and in which the distinction between ‘those who may seek political asylum’ and ‘economic migrants’ is condemned as ‘artificial’ (p. 115), while at the same time ‘the globalised movement of finance capital’ (p. 117) is identified as a force undermining social democracy, and ‘cosmopolitan capitalism’ is described as the outgrowth or cloak for ‘the global penetration of neoliberalism’ (p. 198). The reader is again left with the sense that there is a lack of a clear conceptual basis on which human rights are being invoked here – that there is no properly theorized understanding of the basis of the rights of economic migrants (and, for that matter, refugees and asylum seekers), and their relationship to the state and society. This feeling is buttressed by the surprisingly outmoded analysis of the case law with regard to these issues; any discussion of how human rights law does or does not protect the rights of migrants in the UK must surely refer extensively to the very large corpus of legal decisions on such matters that has emerged in the post-1998 era, but Douzinas’ commentary is limited to a mere three cases, all of which pre-date the Human Rights Act 1998 by some years (pp. 124–128).7 The impression that is imparted to the reader is as a consequence one of ephemerality; if we are to think of human rights as ‘stand[ing] in judgment on the present law’, then ought we not expect it to do so on the basis of what the present law actually constitutes, and its conceptual, jurisprudential, and sociological bases?

The third and final illustration of the symptoms of this central conceptual failing comes in respect of the right to protest, where once more we encounter contradictory impulses. On the one hand, Douzinas endorses resistance and what he calls ‘Bartleby moments’, when people simply choose to stand up in defence of dignity (p. 96). ‘A real right comes to life when people resist power’, he tells us; ‘[l]aws and rights exist and are respected by the authorities because people defend themselves’ (pp. 96–97). He is therefore keen to draw a commonality of purpose between the Black Lives Matter (BLM) protests of the summer of 2020 in the United States with ‘campaigns against the statuary celebrating slavery and colonialism’ and ‘protests in Hong Kong, Chile, France, Greece, Lebanon and elsewhere’, alongside those against the ‘zero-COVID’ policy in China, describing these disparate movements as a ‘new global phase of resistance’ (p. 65) that draws on existing opposition to ‘austerity policies, unemployment and poverty’ that had been present since the 2010s (p. 66).

On the other hand, however, there are other forms of protest and resistance that Douzinas clearly dislikes, and that are described expansively: those of ‘anti-state fanatics … who hate the government, disbelieve science and fight authority from an extreme right-wing perspective’ (p. 66); ‘covid [sic] deniers, anti-vaxxers and small extreme right-wing groups’ (p. 67); ‘alt-right and religious fundamentalists, flat earthers, reactionaries and conspiracy theory enthusiasts’ (p. 94); ‘business advocates and religious leaders’ (p. 66); not to mention ‘Brexit advocates, followers of Trump and Salvini in Italy or Bolsonaro in Brazil’ (p. 66). This wide array of actors are cast not as having engaged during the pandemic in a ‘Bartleby moment’ or a defence of fundamental freedoms or dignity but rather as being rooted in sheer malevolence, ‘fanaticism’, or ‘fascism’ (pp. 66–67) or else plain ignorance (they were ‘confused by the inadequate governmental response and the disagreements among scientists’ which caused an ‘irrational reaction’ (p. 67)).

One is again left with the impression that there is simply no clear concept of what the ‘right to protest’ or ‘right to resist’ ought to entail, why it is that some forms of protest may be more legitimate than others, and how protest in the name of human rights in particular is properly to be understood. What is it that might distinguish BLM protesters from ‘anti-state fanatics … who hate the government’ protesting about lockdown measures, and how does imagining human rights to be embodying a ‘principle of hope’ or a ‘stand[ing] in judgment of the present law’ give us the conceptual tools to understand whether there is a difference between those two types of protester, and why?

This confusion is not so much a revelation of human rights’ nature as a ‘fantasy and hope of redemption’ as it is an exposure of a failure to take seriously the subject of grounds. The result of this is plain: a reduction of ‘human rights’ to something akin to a contentless ‘hurrah word’ that can be made to have whatever meaning is deemed appropriate in accordance with the politics of the interpreter. COVID-related restrictions on civil liberties, restrictions on economic migration and asylum, and the legitimacy of protest and resistance are all subjects about which it is possible to have any opinion whatsoever – even mutually contradictory opinions held simultaneously, as Douzinas appears to – and portray oneself as occupying a rights-based position. This has the final effect not of elevating human rights to a utopian vision but rather reducing them to a mere political gambit, to be pressed into service in the interests of argument as is seen fit – a set of ideas ‘lying around’, to use Milton Friedman's expression,8 to be picked up when needed, but nothing substantively more than that.

In his judgment in the case of Brown v. Stott, Lord Bingham warned of the tendency for human rights advocates to imagine that the European Convention on Human Rights offers relief (quoting Hamlet) ‘from “the heart-ache and the thousand natural shocks / That flesh is heir to”’.9 Rather, he reminded them, it is ‘concerned with rights and freedoms which are of real importance in a modern democracy governed by the rule of law’.10 Though he did not spell it out in so many words, the implication is clear; there is a requirement for something much more difficult than a ‘day dream’ or ‘dreamwork’ – namely, a rigorous effort to understand what ‘rights and freedoms which are of real importance in a modern democracy governed by the rule of law’ should entail, and to root them in conceptual ground that permits us to assess what ‘real importance’ actually means. Such an effort can only really take place through a thoroughgoing inquiry into the basis on which human rights rest, and their proper function in regulating the relationship between the individual and the state. This task, as States of Exception demonstrates, has been neglected – and the result is that we inhabit Douzinas’ rather confusing world, in which human rights are left too nebulous to provide us with practical guidance, and too broad to serve any function other than being a repository for political impulses that may or may not be given effect in law or policy.

This might be called a ‘necessary and impossible commitment to an unconditional justice’, but it could equally well be described as a generalized conceptual weakness whose presence is felt across the piece. In the end, then, States of Exception is a book whose usefulness is chiefly found in the fact that it exposes for scrutiny the consequences of failing to think clearly about what human rights law is really for – though in this it may indeed have the further benefit of acting as a call to arms for scholars who are interested in digging more deeply into the grounds on which human rights rest.